Kansas City v. Allen

• Decision Date: 05 December 1887
• Citation: Kansas City v. Allen, 28 Mo.App. 132 (Kan. App. 1887)
• Parties: CITY OF KANSAS TO USE OF MICHAEL MAHER ET AL., Defendants in Error, v. WILLIAM J. ALLEN ET AL., Plaintiffs in Error.
• Court: Kansas Court of Appeals

28 Mo.App. 132

CITY OF KANSAS TO USE OF MICHAEL MAHER ET AL., Defendants in Error, v. WILLIAM J. ALLEN ET AL., Plaintiffs in Error.

Court of Appeals of Missouri, Kansas City.

December 5, 1887

ERROR to Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Motion to strike out bill of exceptions sustained.

BRYANT & HOLMES, for the motion.

BYRON SHERRY and ROLAND HUGHES, against the motion.

The case is stated in the opinion.

PHILIPS P. J.

This cause was tried at the October term, 1886, of the Jackson circuit court, and on the twenty-first day of December, 1886.On the eighth day of January, 1887, it being yet the October term for 1886, the defendant's motion for new trial was overruled.On the last-named day the defendants took leave entered of record, to file a bill of exceptions on or before thirty days from that date, this being the close of the October term.The January term for 1887 began about the twelfth day of January.At this term, on the fifth day of February, 1887, the thirty days allowed the defendants for filing bill of exceptions, being about to expire, the court by an order of record, extended the time for so filing the bill of exceptions, ten days thereafter.So the bill of exceptions was not filed until the fourteenth day of February, 1887, more than thirty days after the time allowed in the first order of the court.The defendants in error now come and move this court to strike out the bill of exceptions, for the reason that the same was filed out of time.Reliance for this action of the court is placed by the plaintiffs in error on the amended act of 1885.Laws of Mo 1885, pp. 214, 215.This act provides, that such exceptions may be written and filed at the time or during the term of the court at which it is taken, or within such time thereafter as the court may, by an order entered of record allow.A brief reference to the history of the rulings of the Supreme Court, touching the matter of filing bills of exceptions, will show clearly, as we think, that the action of the trial court in this instance cannot be upheld.Under the common-law practice, bills of exceptions had to be made out, presented to the court, and signed at the time the exception was taken.Our practice act, in terms, extended this rule, so as to allow the whole term at which the trial was had, for preparing and having signed the bill of exceptions.The Supreme Court then, by judicial construction, still...